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The Constitution gives the power and makes no exceptions. That it is proper that he pay great deference to the judicial authority on such questions as have already been authoritatively determined may also be conceded. But that he is guilty of any violation of duty, or is disrespectful of the Judiciary, or disregards any just principles of government when he acts upon his own judginent of constitutional right, power, or obligation involved in any proposed law is not admitted. When he does not approve a bill, he is to withhold his approval, and when he may do so on the ground of mere expediency, it would be remarkable if he were not at liberty to do so when his objection' goes to the very right of the legislature to pass the bill at all.”
But Webster was also right in asserting that a President should not refuse to execute a law merely because in his opinion it is unconstitutional. The importance of this view of Webster's was emphasized by Jackson's high-handed conduct in his refusal to is Bound by execute the law as declared by the Supreme Court for the protection of the Cherokee Indians against the State of Georgia. It was in the case of Worcester vs. Georgia (1832), in which the Court declared it to be the President's duty to protect the Cherokees, that Jackson is said to have made use of the notable expression, "John Marshall has made his decision: now let him enforce it." This was an illegal attitude on the part of the President. But there was no remedy in the Judiciary. If the President violates his oath to execute the law it is the duty of the House to impeach him and of the Senate to convict and remove him. If the houses fail to impeach, the only remedy lies in the power of the people to relieve such a President from office at the next election. If the people endorse the President's course by re-election, as in the case of Jackson, the sovereign voice has spoken, and that is final.
The President is bound to execute an act that has been 1 Constitutional Law, p. 162.
passed over his veto, no matter if such an act seems to him clearly unconstitutional. He may not violate or disregard this act as a means of testing its validity before the Court. This would be to give him the suspending power. It would be a double veto: one veto to be overcome only by a two-thirds majority in both Houses, the other to be overcome only by a judicial decision. The constitutionality of an act of Congress can be brought before the courts only by persons not charged with the execution of the laws, whose interests are affected by the act in question. This principle was argued at length in the impeachment trial of President Johnson.' The President's constitutional prerogatives may be infringed upon by an Act of Congress, as was done in the Tenure of Office Act in 1867; but the only defence of the President is in his veto. Nor can the President be restrained by injunction from carrying into effect an Act of Congress alleged to be un
The President may not be
constitutional. This was made clear in Reconstruction times. On March 2 and 23, 1867, Restrained by Congress passed two measures commonly called Injunction. the Reconstruction Acts. These Acts recited that no legal State governments for the protection of life and property existed in certain Southern States, and that it was necessary that peace and order be maintained there until loyal Republican States should be established; and it was made the duty of the President to use military authority in protecting property, punishing violence, and maintaining order. These Acts President Johnson vetoed as unconstitutional, and they were passed over his veto.
A motion was made before the Supreme Court "for leave to file a bill in the name of the State of Mississippi praying the Court perpetually to enjoin vs. Johnson, and restrain Andrew Johnson, President of the United States, and his officers and agents, and especially A. O. C. Ord (General), assigned as military 'See Burgess's Reconstruction, pp. 182-183, et seq.
commander of the district of Mississippi, from executing or in any manner carrying out the two Acts of Congress. named in the bill," on the ground that the Acts were unconstitutional.
The Attorney General objected to the leave to file the bill, upon the ground that "no bill which makes a President a defendant and seeks an injunction against him to restrain him in the performance of his duties as President should be allowed to be filed in the Court." The Supreme Court sustained the objection and refused to consider its right to restrain the President, "without expressing any opinion on the broader issues, whether in any case the President of the United States may be required by the process of this Court to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime."1
It was assumed by the attorneys for Mississippi that President Johnson, in the execution of the Reconstruction Acts, was required to perform a
ministerial duty. This confounds the terms ministerial and executive, which are by no
A ministerial duty, the performance of which may, in proper cases, be required of the head of a department by judicial process, is one in respect to which nothing is left to discretion. It is a simple definite duty, arising under conditions admitted or proved to exist, and imposed by law. It is the act of an agent who must act as directed, without discretion. In his executive duty the President acts as a principal. In this capacity he stands instead of the people, subject only to the control of other prin1 Mississippi vs. Johnson, 1866.
Marbury vs. Madison affords an illustration. The delivery of the commission to Marbury was a purely ministerial act and a lower court might have issued a mandamus to compel this act. See p. 100. See also Kendall, Postmaster-General, vs. Stockton and Stokes; Boyd's Cases in Constitutional Law.
cipals whom the people have appointed in their stead. He has power to control the executive policy within considerable discretion. The people may hamper and weaken their President and reduce his discretion by a hostile twothirds majority in Congress,-by laws limiting his powers or interfering with his prerogatives, passed by this majority that stand ready to impeach the President if he disregards their restrictions. Thus Congress may put
the President in a sort of strait-jacket and bind him down by restrictions. But the people, when they assume to exercise such power through Congress, should remember that they, too, must act according to law, and they have a right to limit the President's powers only within legal limits. If they wish to take away the President's rights, powers, and prerogatives through Congress they must do so by a constitutional process, and not by the mere application of a brutal majority.
We may profitably sum up this subject of executive independence in the words of one of the best-known American authorities in constitutional law:
"Within the sphere of his authority the Executive is independent, and judicial process cannot reach him. But when he exceeds his authority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one and his agents become personally responsible for their acts. The check of the courts consist in refusing the sanction of the law to whatever act is in excess of it, and of holding the executive agents and instruments to strict accountability."
It is in this way the Americans have separated the governmental powers. Some writers have preferred the
'Cooley, Constitutional Law, p. 157. See also Kent's Commentaries, vol. i., pp. 500-507; Webster on the Independence of the Judiciary, Works, vol. iii., p. 29.
English system, by which these powers are concentrated in one body. In England all departments of the government are controlled by a sovereign ministry. It is said that by confiding legislative power and the election and control of the Executive to the same hands, the nation is enabled in any time of emergency to act with its whole force. The English Premier, while supported by his party majority in the Commons, is absolute; he may appoint whom he pleases, dismiss whom he distrusts, and spend whatever is necessary. The English, under their system, in a time of great public emergency, may dismiss an inefficient Executive and call their strongest, most capable man into power. The American people cannot do this.
The Danger in the Independence
of the American Executive.
The framers of the Constitution were possessed with two fears: that the Executive might be become too strong, and they therefore deprived it of any place in Congress; and that it might become too weak, and they therefore made its chief irremovable except by impeachment, vesting him at the same time with absolute power to appoint and to dismiss his advisers, and with the initiative in the nomination and removal of all officers, an initiative which during the recess of Congress becomes a right of appointment. The result of this arrangement is that in an emergency, like a great war, an inefficient President means incurable inefficiency in all departments. There is no power of removing him, there is no power of compelling him to trust the right men, there is no power of coercing him into a greater display of energy. He moves on in his own path more uncontrolled than an Emperor of Russia, for the army has in Russia an influence in emergencies which is never disregarded. Suppose that in a dangerous war crisis, the President, being, as he is, the sole source of executive energy in the Republic, is unequal to his position, does not feel clear what he ought to do, does not pick precisely the right men— in short, suppose, through sheer stubbornness or incompetency,